SHANKER versus STATE OF MADHYA PRADESH on 18 April 2018

814

SUPREME COURT REPORTS

[2018] 6 S.C.R.

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SHANKER

v.

STATE OF MADHYA PRADESH

(Criminal Appeal No.1785 of 2011)

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APRIL 18, 2018

[N. V. RAMANA AND S. ABDUL NAZEER, JJ.]

Penal Code, 1860 – s.302 – Prosecution case that the victimwhile attending a marriage, had altercation with some persons whothreatened him and went away – They subsequently came back withCmore persons at night and assaulted the victim – Allegedly 11persons were involved in the crime – Victim was taken to policestation and FIR was lodged, thereafter he died in the hospital –Trial Court acquitted 6 accused persons, however, remaining 5persons were convicted u/ss.148,302/149 – Appeal dismissed byDthe High Court – Aggrieved, two accused persons, A-3 and A-5filed appeal – Held: Prosecution has failed to prove the allegedoffence by adducing cogent and trustworthy evidence – High Courthas also not dealt with the matter in accordance with the settledprinciples of law – Record reveals that the entire case of prosecutionwas based on the evidence of two prosecution witnesses i.e. P.W-1Eand P.W-5 – In instant case, the Courts below failed to take intoconsideration the contradictions and distortions in the evidence ofP.W-1 & 5 – From the evidence of P.W-1, it transpires that theparticipation and the role played by the appellants (A-3 and A-5) inthe crime was limited to giving blows with fists and legs to theFdeceased, whereas, P.W-5 stated differently that one appellant(A-5) had also attacked the victim holding a knife – There was nocorroboration among their statements, who were the prime witnesses,as to the role played by the accused – In the FIR also, it was statedthat appellants had beaten the victim with hands and feet and noweapon was ascribed to have been held by them – The post mortemGreport and evidence of the doctor did not disclose any injuriessuffered by the victim resulted from the beatings received by fists,cuffs and legs as such injuries were not visible – Prosecution hadmade large number of assailants as accused to have attacked thevictim, but the evidences of witnesses was full of discrepancies andHthey were not able to state as to how the appellants caused injuries to the victim leading to his death – Discrepancies andcontradictions in the case on hand go to the root of the matter andare material ones and based on such evidence, it is not possible toconvict the accused.

Allowing the appeals, the Court

HELD: 1. The High Court unfortunately has not dealt withthe matter in accordance with the settled principles of law.Before going to award conviction against an accused for theoffence under Section 302, IPC the Courts should be mindful ofthe fact that there should be no room to suspect the evidence ofkey prosecution witnesses based on whose evidence theconviction is being awarded. As a general rule, whileappreciating evidence in a criminal case, the Court should bearin mind that it is not the quantity, but the quality of evidence thatis material. It is the duty of the Court to consider thetrustworthiness of the witness and the evidence adduced onrecord and to assess the same in a prudent manner whether thesame inspires confidence so as to accept and act upon, beforeconvicting an accused. [Para 17] [823-A-C]

2. In the case on hand, the Courts below failed to take intoconsideration the contradictions and distortions in the evidenceof PWs 1 and 5. From the evidence of PW1 it clearly transpiresthat the participation and the role played by the accused-appellantsin the crime was limited to giving blows with fists and legs to thedeceased, while other accused were assaulting the deceased withknife and sword stick respectively. A statement of the prosecutionwitness which is otherwise untrustworthy cannot be corroboratedby another piece of unreliable evidence of another prosecutionwitness. In the FIR also, it was stated that, the appellants herein,had beaten the victim with hands and feet and no weapon wasascribed to have been held by them. Whereas, PW5 statesdifferently that the accused-appellant (A-5) had also attacked thevictim holding a knife. There was no corroboration among theirstatements, who are the prime witnesses, as to the role playedby the accused herein. The postmortem report and the evidenceof PW7 (Dr.) does not disclose any injuries suffered by the victimresulted from the beatings received by fists, cuffs and legs assuch injuries are not visible. The prosecution had made large A

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Anumber of assailants as accused to have attacked the victim, butthe witnesses, though their evidences are full of discrepancies,could not be able to state as to how the appellants herein causedinjuries to the deceased leading to his death. In such a scenario,it would not be in the interest of justice to convict the appellantsas the standard of proof in a criminal trial is proof beyondBreasonable doubt and the prosecution could not prove the guiltof the accused in those standards. The Courts below, basing ontheir own assumptions and presumptions, have convicted theaccused. Though every discrepancy and contradiction in theevidence of prosecution witnesses is not fatal to the case of theCprosecution, but the contradictions in the case on hand goes tothe root of the matter are material ones and basing on suchevidence it is not advisable to convict the accused. [Para 18][823-G-H; 824-A-E]

Harijana Thirupala and Ors. v. Public Prosecutor, HighDCourt of A.P., Hyderabad [2002] 1 Suppl. SCR 379 :(2002) 6 SCC 470 – relied on.

S. Govidaraju v. State of Karnataka 2013 (10) SCALE454 – referred to.

Case Law ReferenceE2013 (10) SCALE 454 referred toPara 14

[2002] 1 Suppl. SCR 379 relied on

Para 17

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 1785 of 2011.F

From the Judgment and Order dated 12.09.2007 of the High Courtof Madhya Pradesh Judicature at Jabalpur in Criminal Appeal No. 333of 1999 in Session Case No. 120 of 1998

WITH

GCriminal Appeal Nos. 1786-1788 of 2011.

Krishnakant Pandey, Dhanesh B. Dhotre, Shiv Sagar Tiwari, Advs.for the Appellant.

D.S. Parmar, Rajesh Srivastava, Ms. Swarupma Chaturvedi(for Mishra Saurabh), Advs. for the Respondent.H

The Judgment of the Court was delivered by N.V. RAMANA, J. 1. These appeals by special leave aredirected against the judgment dated 12[th] September, 2007 passed by theHigh Court of Madhya Pradesh, at Jabalpur in Criminal Appeal Nos.315, 316, 333 and 590 of 1999, whereby the High Court dismissed thecriminal appeals filed by the appellants herein and affirmed the order ofconviction and sentence passed by the trial Court against them.

2. Brief facts of the case, according to the prosecution, are thaton 8[th] May, 1998 one Sanjay Sorle was attending a marriage at Bharvelivillage. While the ceremonials were underway, one Deepak with twoothers arrived there on motorcycle. An altercation had taken placebetween Sanjay Sorle and the motorcyclists. Deepak, while leaving thatplace, threatened Sanjay Sorle and went away. After that, he came backto the marriage venue at about 10.30 p.m. on a bullet motorcycle withGudda @ Shivshanker, Shiv, Suresh (appellant herein) and Shanker(appellant herein) and took away Sanjay Sorle from the venue to theroad and assaulted him. Altogether 11 persons were allegedly involvedin the crime. Gudda had inflicted injuries with knife, Shiv with Guptiwhile Shanker and Suresh i.e. appellants herein attacked him by givingfist blows. The injured Sanjay Sorle was taken to police station at Bharveliand lodged the F.I.R. at 11 p.m.

3. Upon registering the same as Crime No. 54/98, police sent theinjured Sanjay Sorle to the District Hospital at Balaghat for treatment,where he was declared dead. After conducting inquest (Ext.P3), deadbody of the deceased was sent for postmortem, statements of witnesswere recorded, site map has been prepared by Patwary (Ext. P5) aswell as police (Ext.P24). Accused were arrested and at the instance ofaccused Shivshankar, Manoj, Dwarka and Shivkumar knives and otherincriminating material have been seized. Bullet motorcycle, allegedly rodeby the accused, has also been recovered from the possession of accusedChokhu @ Sudhanshu (Ext. P9). Other things such as bloodstained soil,normal soil and clothes of deceased were seized and sent for expertexamination. Charges were levelled against five accused persons i.e.Manoj, Baburao, Deepak, Gudda @ Shivshanker, Shanker and Dwarka@ Dan under Sections 148 and 302/149, IPC. In addition to those charges,accused Rupesh, Chokhu @ Rakesh, Suresh, Shiv Kumar and Dablu @Sudhanshu were additionally charged for the offence punishable under A

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ASection 3(2)(5) SC & ST Act, 1989. The accused denied the charges,pleaded to have been falsely implicated and claimed to be tried.

4. After an elaborate trial, learned Additional Sessions Judge by acommon judgment in Special Sessions Case No. 51/1998 and SessionsCase No. 120/1998, acquitted six accused persons from all the chargesBand discharged the accused (including appellants herein) from the chargesunder Section 3(2)(5) of SC & ST Atrocities Act, 1989. However, thetrial Court came to the conclusion that the remaining five accused(including appellants herein) were guilty of the offences punishable underSections 148, 302/149, IPC. Accordingly by judgment dated 27[th] January,1999 they were convicted and sentenced to suffer rigorous imprisonmentCfor a period of one year for the offence under Section 148, IPC. Whereas, for the offence punishable under Section 302/149, IPC they weresentenced to suffer life imprisonment and to pay a fine of Rs.2,000/-each, in default, to further suffer one year imprisonment. However, allthe sentences were directed to run concurrently.

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5. All the five accused persons, being aggrieved by the judgmentof the trial Court, carried the matter in appeal before the High Court ofMadhya Pradesh at Jabalpur assailing the award of their conviction andsentence. By the judgment impugned herein, the High Court found theirappeal devoid of merits and therefore dismissed the same upholding theEjudgment passed by the trial Court. Dissatisfied with the same, AccusedNo. 3—Suresh Dhobi and Accused No. 5—Shanker are before thisCourt by way of present appeals.

6. We have heard learned counsel for the appellants as well aslearned counsel appearing on behalf of the respondent – State of MadhyaFPradesh. Unfortunately, there is no proper assistance from the learnedcounsel appearing on behalf of the appellants, in spite of takingadjournments. However, learned counsel appearing for the State hassubmitted that since two Courts have concurrently affirmed the guilt ofthe accused, there are no compelling reasons for this Court to interferewith the impugned judgment and advanced arguments in support of theGsame.

7. The translated copies of evidence of prime witnesses, P.W.-1and P.W.5, whose evidence is crucial for this case, which were filed bythe appellant along with appeals are not clear and we found so manytypographical and grammatical mistakes in them. In all fairness, learned H

counsel appearing on behalf of the respondent—State himself has evenfiled translated copies of evidence of PWs 1 and 5. We acknowledgethe able assistance of learned counsel appearing for the respondent—State, in facilitating this Court to go through the evidence in the processof arriving at a just conclusion.

8. The evidence available on record reveals that the entire caseof the prosecution is based on the evidence of two prosecution witnessesi.e. P.W.1—Ganesh Prasad and P.W.5—Savitri Bai.

9. It is manifest from the evidence of P.W.1—Ganesh Prasad,that though he had seen both the accused—appellants herein, but heknew them only by their face and it is PW5—Savitri Bai who told himtheir names, and basing on what she said, he has got their names recordedin the FIR. He further states that both the accused have disclosed theirnames to be Shanker and Suresh. But it is not clear from his evidencethat to whom the accused disclosed their names. Even though the namesof the two accused are there in the F.I.R., as per P.W.-1, the role playedby these two accused is that they had, along with other accused, beatthe victim by giving blows with fists and legs. It was expressly stated byPW1 that by the time he thought of calling for help, the accused—appellants fled away from the place of occurrence.

10. PW5—Savitri Bai, who also happened to be the panch of theward, deposed that she was standing at a distance of about 10 feet fromthe victim Sanjay Sorle at the marriage venue (Mandap) accused Shivtook away Sanjay Sorle outside where other accused Gudda, Deepak,Shanker and Suresh were present. Contrary to the statement of PW1,she deposed that the accused—appellant Shanker was armed with aknife and assaulted the victim while Shiv assaulted with sword-stick,Gudda with a knife while Suresh and Deepak caught hold of Sanjay. Shesays that she did not notice the other persons present at the place ofoccurrence. When she shouted loudly, the accused persons fled awayand the victim came to the Mandap groaning. Whereas, in her cross-examination, she categorically stated that the scene of offence cannotbe seen from the place of Mandap.

11. From the evidence of PW5, it appears that there is a hugediscrepancy in the prosecution case as to who lodged the FIR. It wasclearly stated by PW5 that it was she who lodged the report at the policestation and she had no knowledge about anyone else lodging the complaint A

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Aand also she does not know the reason for not enclosing her report. Shemade it clear that after lodging the report she came back to her home.Then after half an hour when she returned home, police recorded herstatement. It is significant to note that PW5 has specifically stated thatPW1—Ganesh Prasad had not lodged the report. It was also clarifiedby her that none of the accused assaulted the victim with lathi (stick).B

12. At this juncture, it is very much relevant to have a look at theevidence of Doctor. According to PW7—Dr.Nilay Jain, who conductedpostmortem on the body of the deceased, the deceased had sustainedthe following injuries:

C1. One quenched wound at present near the nipple oblique 2.0 x1.5 x 3.0 cms.

2. One quenched wound at mid auxiliary line oblique (D) on 10[th],11[th] and 12[th] ribs standard sized about 1.5 x 1.0 x 4.5 cms.

3. One quenched wound on abdomen at mid chronological line onD10[th], 11[th] and 12[th] ribs oblique sized about 3.0 x 2.5 x 6.0 cms.(depth) at thigh (upper side) on lateral aspect.

4. One oblique quenched wound sized about 5.0 x 2.0 x 7.0 cms.on (depth) right renal angle;

5. One horizontal quenched wound dolente sized about 5 x 1.5 xE2.0 cms. (D) injury near nipple is very clear pleasing 2[nd] and3[rd] ribs picking about of the chest (RT atinum).

The Doctor expressed his opinion that the death could haveoccurred as a result of shedding of excessive bleeding from the heartand the same could have caused with 18 hours of postmortem. In theFcross-examination, it was elicited from the Doctor that the death wascaused by Injury No. 1 only and there was no possibility of occurringdeath from other injuries. The Injury No. 1, in the opinion of the Doctor,could only be inflicted by a knife or gupti and not by hand or a lathi.

13. We have given our anxious consideration to the evidence ofGprime prosecution witnesses i.e. PWs 1 & 5, it is clear that theirstatements are not corroborating with the other on material aspects. Itappears that the Courts below have unmindfully given greater importanceto the evidence of PWs 1 and 5, without looking into the veracity of theirstatements. First and foremost, if credence is given to the statement ofH

PW5, the genesis and genuineness of FIR (Annexure P1) is, undoubtedlyquestionable. If the FIR (Ext.P1) was registered on the basis of complaintof PW1, which remains duly proved by the statement of its writer M.G.Choubey (PW17), then the statement of PW5 could not be believed andgiven effect to, as in her deposition she categorically asserts that it wasshe who lodged the complaint with police and PW1 did not lodge anyreport to the police. If PW1’s statement is to be believed, it cannot besaid that he was an eyewitness to the incident, as according to him at thetime of incident, he went to the mandap to call for help of other personsand the place of incident is not visible from mandap. This fact alsoproved by the evidence of Amit—PW4, another close relative of PWs 1and 5. According to PW4, when he and PW1 were present in themandap, Sanjay Sorle came there and fall down going into the state ofunconsciousness. When PWs 1 and 4, gone to see outside the mandap,by then the accused left the place. He says that he has no knowledge inwhich direction the accused left. PW5 is none other than niece of PW1.According to her, she was the person physically present at the mandapand followed the accused when they were taking away the deceased.This only establishes the factum of being the eyewitness but cruciallyshe had omitted to state to the I.O. about the fact that she followed thedeceased to the scene of offence from the mandap. The omission tothis effect is marked as Ex. D2. In view of that, the evidence of PW1that he came to know about the names of the assailants through PW5also does not inspire confidence.

14. At this juncture, it would be helpful to look at the observationsmade by this Court in S. Govidaraju vs. State of Karnataka, 2013 (10)SCALE 454 in the following words:

“It is well settled legal proposition that while appreciating theevidence, the court has to take into consideration whether thecontradictions/omissions were of such magnitude so as tomaterially affect the trial. Minor contradictions, inconsistencies,embellishments or improvements in relation to trivial matters, whichdo not effect the core of the case of the prosecution, must not bemade a ground for rejection of evidence in its entirety. The trialCourt, after going through the entire evidence available, must forman opinion about the credibility of the witnesses, and the appellatecourt in the normal course of action, would not be justified in AB

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Areviewing the same, without providing justifiable reasons for doingso. Where the omission(s) amount to a contradiction, creating aserious doubt regarding the truthfulness of a witness, and the otherwitnesses also make material improvements before the court inorder to make the evidence acceptable, it would not be safe torely upon such evidence. The discrepancies in the evidence ofBeyewitnesses, if found not to be minor in nature, may be a groundfor disbelieving and discrediting their evidence. In suchcircumstances, the witnesses may not inspire confidence and iftheir evidence is found to be in conflict and contradiction withother evidence available or with a statement that has already beenCrecorded, then in such a case, it cannot be held that the prosecutionhas proved its case beyond reasonable doubt”.

15. On the face of the present case, it can be said without anyhesitation that the prosecution has miserably failed to prove the allegedoffence by adducing cogent and trustworthy evidence. In other words,Dthe present case is based on a fragile and weak footing with severalcontradictions in the evidences of prime prosecution witnesses. Further,most of the prosecution witnesses have turned hostile and no independentwitness supported the prosecution case. Interestingly, no test identificationparade was conducted even though PW1 states that he could recognizethe accused only by face, initially there were only five persons named asEaccused but subsequently in all, 11 persons were charged and most ofthem have already been acquitted by the Courts below. The material onrecord shows that a lathi (stick) was also recovered from the possessionof accused, but there was no evidence to show who wielded the lathi inthe assault against the victim. According to PW5, none of the accusedFassaulted the deceased with lathi.

16. The judgment of the trial Court, in our opinion, filled withassumptions and presumptions basing on which the trial Court awardedconviction and sentence to the accused. The trial Court had also pointedout that except Ganesh Prasad (PW1), Amit (PW4) and Savitri BaiG(PW5) no other witness has supported the prosecution case. Clearly,the statements of PWs 1 & 5 do not corroborate on crucial aspects,more particularly the genesis of FIR remained doubtful, yet the trialCourt went on convincing itself with the evidences of PWs 1 and 5 andalso on the basis of its own presumptions.

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17. The High Court unfortunately has also not dealt with the matterin accordance with the settled principles of law. Before going to awardconviction against an accused for the offence under Section 302, IPCthe Courts should be mindful of the fact that there should be no room tosuspect the evidence of key prosecution witnesses based on whoseevidence the conviction is being awarded. As a general rule, whileappreciating evidence in a criminal case, the Court should bear in mindthat it is not the quantity, but the quality of evidence that is material. It isthe duty of the Court to consider the trustworthiness of the witness andthe evidence adduced on record and to assess the same in a prudentmanner whether the same inspires confidence so as to accept and actupon, before convicting an accused. Here it is apt to look at theobservations made by this Court in Harijana Thirupala and Ors. vs.Public Prosecutor, High Court of A.P., Hyderabad, (2002) 6 SCC470:

“In cases where the court entertains reasonable doubt regardingthe guilt of the accused the benefit of such doubt should go infavour of the accused. At the same time, the court must not rejectthe evidence of the prosecution taking it as false, untrustworthyor unreliable on fanciful grounds or on the basis of conjecturesand surmises. The case of the prosecution must be judged as awhole having regard to the totality of the evidence.

In appreciating the evidence the approach of the court must beintegrated not truncated or isolated. In other words, the impact ofevidence in totality on the prosecution case or innocence ofaccused has to be kept in mind in coming the conclusion as to theguilt or otherwise of the accused. In reaching a conclusion aboutthe guilt of the accused, the court has to appreciate, analyse andassess the evidence placed before it by the yardstick of probabilities,its intrinsic value and the animus of witnesses.

It must be added that ultimately and finally the decision in everycase depends upon the facts of each case”.

18. In the case on hand, the Courts below failed to take intoconsideration the contradictions and distortions in the evidence of PWs1 and 5. From the evidence of PW1 it clearly transpires that theparticipation and the role played by the accused—appellants Shanker A

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Aand Suresh in the crime was limited to giving blows with fists and legs tothe deceased, while other accused Gudda and Shiv were assaulting thedeceased with knife and sword stick respectively. A statement of theprosecution witness which is otherwise untrustworthy cannot becorroborated by another piece of unreliable evidence of anotherprosecution witness. In the FIR also, it was stated that Shanker andBSuresh, the appellants herein, had beaten the victim with hands and feetand no weapon was ascribed to have been held by them. Whereas,PW5 states differently that the accused Shanker had also attacked thevictim holding a knife. There was no corroboration among their statements,who are the prime witnesses, as to the role played by the accused herein.CThe postmortem report and the evidence of PW7 (Dr. Nilay Jain) doesnot disclose any injuries suffered by the victim resulted from the beatingsreceived by fists, cuffs and legs as such injuries are not visible. Theprosecution had made large number of assailants as accused to haveattacked the victim, but the witnesses, though their evidences are full ofdiscrepancies, could not be able to state as to how the appellants hereinDcaused injuries to the deceased leading to his death. In such a scenario,it would not be in the interest of justice to convict the appellants as thestandard of proof in a criminal trial is proof beyond reasonable doubt andthe prosecution could not prove the guilt of the accused in those standards.The Courts below, basing on their own assumptions and presumptions,Ehave convicted the accused. Though every discrepancy and contradictionin the evidence of prosecution witnesses is not fatal to the case of theprosecution, but the contradictions in the case on hand goes to the rootof the matter are material ones and basing on such evidence it is notadvisable to convict the accused.

F19. In view of the foregoing, we are not able to appreciate thereasoning given by the Courts below for convicting the appellants forthe alleged offences and we are of the considered view that theprosecution has miserably failed to prove the guilt of the accused beyondreasonable doubt. Resultantly, we set aside the impugned judgment passedby the High Court and allow these appeals.G

Ankit Gyan

Appeals allowed.

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